REGARDING: This letter concerns Grievance # (Alan Miles) and is my reply to your

Transcription

1

2

3 Ms. Felice Congalton Associate Director WSBA Office of Disciplinary Counsel 1325 Fourth Ave #600 Seattle, WA April 11, 2012 Dear Ms Congalton: And to the WA STATE SUPREME COURT dismissal. REGARDING: This letter concerns Grievance # (Alan Miles) and is my reply to your First and foremost, I protest your involvement in this matter for reasons that are argued in grievance Grievance essentially proves that you, Ms. Congalton, and the WSBA are corrupt. Mr. Miles is a WSBA member and has been molded by the WSBA to behave in the way he behaves because of you the Bar. The WSBA nor you can fairly judge Mr. Miles s behavior because you and he are one in the same. Unless the WSBA (A.K.A., lawyers, judges, prosecutors, conflicts officers, review committees ) acknowledges your conduct and your members conduct is repugnant to a civilized society, Mr. Miles behavior to you will appear normal. It is a dilemma the WSBA cannot escape because you have no ethical frame of reference beside yourself. GENERALLY: Ms. Congalton s dismissal of grievances without an investigation, when the grievance center on, but not limited to, RCW , as well as RPC 8.4(a), is improper and raise serious concerns about the nature of the Bar itself. 1. Ms. Congalton, nor the Bar, has authority to render a statute irrelevant. As she has done. 1, 2 1 RCW Every person before being admitted to practice law in this state shall take and subscribe the following oath: I do solemnly swear: I am a citizen of the United States and owe my allegiance thereto; I will support the Constitution of the United States and the Constitution of the state of Washington;

4 2. Ms. Congalton, nor the Bar, has authority to render a rule of professional conduct 3, 4, 5 irrelevant, (a). As she has done. I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land, unless it be in defense of a person charged with a public offense; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge and approval; I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice. So help me God. 2 [6] Statutes - Construction - Administrative Interpretation - Effect. An administrative agency cannot amend or alter the plain meaning of a statute by its interpretation and implementation. IN RE GEORGE 90 Wn.2d 90, 579 P.2d [7] Courts - Rules of Court - Construction - Rules of Statutory Construction. Court rules are interpreted in the same manner as statutes. STATE v. BLILIE 132 Wn.2d 484, (1997) 4 RPC RULE 3.3 CANDOR TO A TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. 5 RPC 8.4 MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; (g) commit a discriminatory act prohibited by state law on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status, where the act of discrimination is committed in connection with the lawyer's professional activities. In addition, it is professional misconduct to commit a discriminatory act on the basis of sexual orientation if such an act would violate this Rule when committed on the basis of sex, race, age, creed, religion, color, national origin, disability, or marital status. This Rule shall not limit the ability of a lawyer to accept, decline, or withdraw from the representation of a client in accordance with Rule 1.16; (h) in representing a client, engage in conduct that is prejudicial to the administration of justice toward judges, other parties and/or their

5 3. Ms. Congalton, nor the Bar, has authority to assist other attorneys in violating the law. As she has done by the very fact of 1 and 2 above. 4. Ms. Congalton, nor the Bar, has authority to dismiss a grievance before a grievant has the opportunity to discuss his grievance. 6 As she has done. 5. Is the Bar itself an unlawful organization? It is. 7 No one outside the Bar, from attorney to Chief Justice, may review or discipline a member of the Bar. The Bar and its members have absolute power to decided for themselves the meaning of the laws counsel, witnesses and/or their counsel, jurors, or court personnel or officers, that a reasonable person would interpret as manifesting prejudice or bias on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status. This Rule does not restrict a lawyer from representing a client by advancing material factual or legal issues or arguments. (i) commit any act involving moral turpitude, or corruption, or any unjustified act of assault or other act which reflects disregard for the rule of law, whether the same be committed in the course of his or her conduct as a lawyer, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action, nor shall acquittal or dismissal thereof preclude the commencement of a disciplinary proceeding; (j) willfully disobey or violate a court order directing him or her to do or cease doing an act which he or she ought in good faith to do or forbear; (k) violate his or her oath as an attorney; (l) violate a duty or sanction imposed by or under the Rules for Enforcement of Lawyer Conduct in connection with a disciplinary matter; including, but not limited to, the duties catalogued at ELC 1.5; (m) violate the Code of Judicial Conduct; or (n) engage in conduct demonstrating unfitness to practice law. 6 ELC 5.1 GRIEVANTS (c) Grievant Rights. A grievant has the following rights: (1) to be advised promptly of the receipt of the grievance, and of the name, address, and office phone number of the person assigned to its investigation if such an assignment is made; (2) to have a reasonable opportunity to speak with the person assigned to the grievance, by telephone or in person, about the substance of the grievance or its status; et. Seq. 7 4] Administrative Law - Delegation of Powers - By Legislature - Validity - Procedural Safeguards - Felony Offense - Second Administrative Look - APA Rule-Making Requirements. For purposes of determining whether there exist sufficient procedural safeguards to uphold a legislative delegation of authority to an administrative agency to define an element of a criminal offense, the agency's action satisfies the requirement of a second look through administrative channels where the agency follows the rule-making procedures of the Administrative Procedure Act (chapter RCW) of providing notice of the proceedings, requesting public comment, conducting a hearing, and publishing the results. State v. Simmons 152 Wn.2d (Oct. 2004)

6 that apply to them unlike any other private citizen, business, profession, vocation, non-profit group, or agency. 8, 9 ARGUMENT Ms. Congalton s dismissal of grievance (Miles). Felice P. Congalton, WSBA Senior Discipline Counsel rapidly dismissed grievance , without conducting an investigation, without providing an opportunity for Scheidler s rights under ELC 5.1, and by assuming facts that are not supported by the evidence. Ms. Congalton bases her dismissal upon presumed facts that cannot be determined without an investigation. Ms. Congalton bases her dismissal in boiler-plate language, not in a discussion of the facts. This warn-out tactic must stop because WSBA s boiler-plate excuses are a fraud upon the citizens of this state! Justice Sanders of the WA Supreme Court, in CITY OF SEATTLE V. MAY 171 Wn.2d 847, states in dissent, The boilerplate "finding" at issue here is at best vague and inadequate; To the extent the WSBA s dismissal is based in some notion that a court must first find an impropriety is unsupported by any rule or precedent and again speaks to the utter nonsense spewed by the WSBA. Said another way, violations of the Rules of Professional Conduct are not necessarily violations of law. RCW expressly states, The following conduct, acts, or conditions constitute unprofessional conduct (1) The commission of any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person's profession or operation of the person's business, whether the act constitutes a crime or not. Furthermore, The Supreme Court states in HIZEY v. CARPENTER 119 Wn.2d 251, P.2d 646, 8 SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights. 9 SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

7 [1] Attorney and Client Malpractice Basis of Action Ethical Rules. A private cause of action for legal malpractice cannot be based on a violation of the Code of Professional Responsibility or the Rules of Professional Conduct; neither the CPR nor the RPC sets a standard for civil liability. [2] Attorney and Client Malpractice Proof Ethical Rules. A violation of the Code of Professional Responsibility or the Rules of Professional Conduct may not be used as evidence of legal malpractice. Ms. Congalton s dismissal of grievance is improper because she assumes a result from a lawsuit, or the lack of a report of misconduct by a bar member, is an absolute determination of ethical conduct. This means citizens can never raise a complaint unless another lawyer first finds an inpropriaty. This flies in the face of legal precedent and the duty the WSBA has to citizens of this state. Ms. Congalton abuses her power in taking this approach. The WA Supreme Court has held in WILSON v. HORSLEY 137 Wn.2d 500, To constitute a clear abuse of discretion, the court's [WSBA in this instance] decision must be manifestly unreasonable, based on untenable grounds, or made for untenable reasons In RIVERS v. CONF. OF MASON CONTRACTORS 145 Wn.2d 674, (2002) Justice Chambers writes that [an abuse of discretion occurs] if the record is bare of reasoning that would allow us to review the trial court's [WSBA in this instance] reasoning. Ms. Congalton violates the Court s own conditions stated in both WILSON and RIVERS by not providing her reasoning. No one can determine if the conclusions Ms. Congalton declares in her dismissal of are unreasonable, based on untenable grounds or made for untenable reasons. This speaks to the very issue of allowing the legal profession to police itself they break their own rules. This arbitrary conduct is clearly aimed at delaying my quest for justice by having to appeal rulings by Ms. Congalton because Ms. Congalton doesn t comply with the standards laid down by the WA Supreme Court. Here too an attorney s oath is violated. An attorney vows to never delay any man's cause for lucre or malice Id., RCW

8 Conclusion: Ms. Congalton s dismissal should be reversed. Ms. Congalton s conduct should be sanctioned. And Mr. Miles should be investigated for violations perpetrated upon Scheidler in violation of RCW , RPC 3.3, 8.4. Respectfully submitted on this April 11, 2012, and attest that the foregoing is true. William Scheidler,